Strengthening the Synergies Between Competition Law and Sustainability: Our Submissions to EU Policy Processes

The EU is committed to contributing to the achievement of the UN Sustainable Development Goals, and the goals set by the Paris Agreement. Under the European Green Deal, it has explicitly committed to ensure that “[a]ll EU actions and policies should pull together to help the EU achieve a successful and just transition towards a sustainable future.” Competition law cannot remain an exception to this move towards coherence, and the FTAO is glad to have participated in two parallel policy processes through which we except the Commission to strengthen the synergies between competition law and sustainability.

In June 2020, the FTAO published a position paper on EU Competition Law and Cooperation Agreements for Sustainability, in which we made clear that the new guidelines for horizontal agreements between competitors must enable and facilitate agreements aiming to achieve sustainability objectives, and that this is valid for both the environmental dimension of sustainability and the social one.

The FTAO has also participated in the broader debate on competition law and sustainability through two recent European Commission (EC) consultations: the consultation on Competition law and the green deal, and the EC consultation on a New Competition Tool (NTC). Our submissions have benefited from the inputs of several experts from academia and civil society who participated in a workshop hosted by the FTAO on 27 October 2020.

The consultation on a New Competition Tool (NTC), was an opportunity to reflect on the possible existing gaps in competition law. In the context of this consultation, we published a discussion paper in which we develop ideas on the added value of such a tool and the kind of problems that we think that it can address.

In the discussion paper, we argued that if this tool is designed to address market power issues in markets other than digital ones, it can deliver a meaningful contribution to sustainability. A structure-based, rather than a sector-based NCT, with a horizontal scope, would make the NCT “future-proof and effective” and could be an appropriate mechanism to solve various structural competition problems in supply chains that the current competition law framework is unable to address- agri-food supply chains, among others. The discussion paper also argues that an NCT with a digital scope could still help narrow the gap between EU competition law and sustainability. To that end, it highlights various existing and potential structural competition issues in the digital sphere that should not be overlooked when designing the legal framework for the NCT. It also explores the relationship between the NCT and the ex-ante regulatory mechanism.

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